(IPRinfo Special Issue, September 2006)
Dr. Marjut Salokannel
Collegium for Advanced Studies,
University of Helsinki

The most significant novelty in the new French law is the one requiring software interoperability of technical measures.

This summer France has finally concluded the process of transposing the so called Infosoc Directive into the French law. The Decision of the French Constitutional Council on 27th of July 2006 concluded a long and tumultuous legislative process which had started in October 2003 when the French government submitted a proposal relative to the transposal of the Infosoc Directive to the French parliament.

After that, the original proposal went through a multitude of variations with hundreds of amendments and was finally adopted on June 30, 2006 through a reconciliation process by a joint parliamentary committee from the meeting of which the opposition walked out. The opposition took the adopted version of the law to the Constitutional Council which changed it yet again – but to a different direction than the petition had asked for (Decision no. 2006-540 D, of 27 July 2006).

I shall highlight some of the major juridical inventions which have emerged and vanished – maybe temporarily – in the course of the French legislative process. In particular, I shall analyze the proposals of the law relative to private copying and software interoperability.

At one point the proposed law contained – albeit at different times – provisions with regard to these issues which presented novel solutions to problems created by new technologies not known elsewhere prior that date. Unfortunately, it is not within the scope of this article to analyze the new law in its entirety, so this article constitutes only a glance at certain aspects of the law.

Private copying and P2P networks
The current French law permits private copying in articles L 122-5 (exception to the rights of authors) and L 211-3 (exception to the rights of performing artists and producers of phonograms and audiovisual fixations). It has been interpreted to permit copying works from peer-to-peer networks (downloading) but not uploading of works to the internet depending on the circumstances.

There is recent jurisdiction allowing the use of peer-to peer networks (Tribunal de Grande Instance de Paris 8.12.2005) and denying the use of technical copy protection if it prevents the consumer from transferring a musical work from a CD to another recording format for private use (10.1.2006 Tribunal de Grande Instance de Paris). There are also several court cases permitting downloading using peer-to-peer software and charging a nominal amount – from 20 to 70 cents per song) for uploading.

Proposal for a global legal licence
Perhaps the most revolutionary item in the law was the proposal for introducing for broad band connections a system similar to the remuneration for private copying from blank audio and video, including digital, recording media. This system would entail a flat-rate monthly payment (approximately 5 euros) by the consumers for a broad band connection.

The payment would be collected by the internet service providers, who would pay it to various collecting societies representing different right holders. For right holders it would require obligatory collective management of remunerations which they would receive in the same manner as they do from the existing private copying schemes.

The proposed system was voluntary, a contractual legal license, so that those consumers who do not exchange protected works through peer-to-peer networks would not have to pay the fee. A stricter version of this would be an obligatory legal license under which all consumers would have to pay a flat rate fee for their broad band connections. The amendments introducing legal licence for peer-to-peer networks were accepted by the French parliament in December 2005 by two votes’ majority. They were, however, voted out the following year.

The amendments would have allowed individual persons to make copies of works, with the exception of software, from on-line communication networks for their private use under the condition that it is not directly or indirectly for commercial gain. This would have been possible under the condition that such copies are subject to remuneration to be paid and collected as specified in the law (article L. 311-4), that is the system introducing a flat rate monthly fee for on-line connections. These remunerations are to be paid to the right holders.

Had this proposal made it to the final law, it would have legalized the use of peer-to-peer networks in France and provided right holders remuneration for such use. It would also have been compatible with the Infosoc Directive. It had broad support among performing artists and their associations as well as the internet user community. It is likely that this proposal will not remain buried for long but will resurface after the elections in 2007.

Exploitation environment has changed profoundly
In an on-line interview Professor Michel Vivant, when asked about the proposed legal licence, stated that the current law is still based on the concept of a book as the physical object of protection whereas the current environment of producing and disseminating protected works has very little in common with the hey-days of book publishing industry.

Since the environment of producing and disseminating works has profoundly changed, we may also have to reconsider the foundations of protection. Maybe, according to Vivant, it is also time to consider introducing a right to remuneration instead of exclusive rights in the on-line environment. Enforcing exclusive rights in peer-to-peer communication networks has proven to be socially – if not legally – untenable. If the social legitimacy of legislation flounders, it is time to reconsider the very basis of the law.

The French discussion has also had ramifications outside of France. In Sweden, where the Infosoc Directive had already been transposed before, the Minister of Justice announced this summer that he is willing to reconsider introducing such a levy system for broad band connections if a proposal to such effect would be brought to him.

Technical protection measures
The crucial question with regard to the application of technical protection measures is to what extent users may bypass them in order to benefit from an exception provided by the law, such as for private copying. The new French law does not provide a clear cut answer but rather leaves it to be resolved by the Regulatory Authority of Technical Protection Measures, an institution to be set up according to the new law.

According to the new law the right to enjoy of the exception to private copying and other exceptions is guaranteed as set out in the law. According to the article 7 of the new law “Technical protection measures cannot prevent the free use of works or protected objects within the limitations of rights provided by this law as well as within the rights granted by the right holders.” (Les mesures techniques ne peuvent s’opposer au libre usage de l’Å’uvre ou de l’objet protégé dans les limites des droits prévus par le présent code, ainsi que de ceux accordés par les détenteurs de droits.)

A governmental decree shall provide for the conditions of applying technical protection measures and for the information that must be communicated to the consumers with regard to the use of such measures.

However, in its decision the Constitutional Council stated that authors and right holders are not prevented by the law from using technical protection measures in order to prohibit making any copies at all for private use in special circumstances when making such copies would endanger the normal exploitation of works or when it would present an unjustified prejudice to the interests of right holders.

According to the Constitutional Council any other solution would be incompatible with the three-step test imposed by the directive. In practice, the application of these somewhat conflicting provisions is to be decided by the Regulatory Authority of Technical Protection Measures, which has the authority to decide the legality of the use of technical protection measures in a specific case or under specific circumstances.

Software interoperability
The most significant novelty in the new French law is the one requiring software interoperability of technical measures. In principle, manufacturers of technical measures have to make sure that technical measures do not prevent interoperability of the software.

The providers of technical measures have to communicate the essential information pertaining to interoperability to the Regulatory Authority, whose task it is to guarantee the interoperability. In determining the scope of interoperability, the Regulatory Authority can act within the limits set out in the law.

If a provider of a technical measure (such as the provider of Apple’s iTunes software, which is compatible only to play with Apple’s iPod players), does not give out the necessary information voluntarily, a software publisher, a manufacturer of technical measures and any other on-line service provider may ask the Regulatory Authority to guarantee interoperability of the existing systems and services and obtain the essential information with regard to interoperability from the owners of rights of such technical measures.

The Regulatory Authority can thus grant a compulsory license and obligate the provider of technical measures to grant access to the essential information pertaining to software interoperability. The Regulatory Authority shall also set the remuneration for such a licence.

No other EU country has similar interoperability provisions in their national copyright laws. However, in Norway, Sweden and Denmark, competition authorities are investigating whether Apple’s denial to license its iTunes software for other than its own iPod players is against competition law. Moreover, in Britain the British recording industry’s trade association, the BPI, has asked the Parliament to order that the iTunes music should be made compatible with other portable music devices.

Future visions
Even if the proposals aiming at legalizing peer-to-peer file sharing through adoption of a flat rate levy did not pass under the current French government, there are already strong voices vouching for the resurfacing of these issues after the elections in 2007.

The leading socialist candidate for presidential elections, Ségolène Royal, has publicly announced that the new French copyright law as it is applied to on-line services is based on an out-moded economic model and that new modes of remunerating right holders should be considered, including a global legal licence for peer-to-peer services.

In Sweden, a flat rate levy compensating right holders for file-sharing in peer-to-peer networks has also risen on the political agenda. Network interoperability also seems to be on the way in the Nordic countries through competition law.

As for Finland, the transposal of the Infosoc Directive led to a situation that private citizens can no longer, without risking liability, make copies of works from internet unless this is specifically permitted. Neither is it allowed to bypass technological protection measures for format shifting purposes of legally purchased digital copies of works. However, when passing the new law, the Finnish Parliament required that its practical implications have to be re-assessed after one year of the entering into force of the law.

Infosoc directive: “Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society”
(Official Journal of the European Communities L 167/10, p. 10-19, 22.6.2001)

The French law:
LOI n° 2006-961 du 1er août 2006 relative au droit d’auteur et aux droits voisins dans la société de l’information. Journal Officiel no. 178 fo 3rd August 2006, page 11529, text no.1.

See more closely on the proposed system:
Bernault, C., Lebois A., Peer-to-Peer File Sharing and Literary and Artistic Property, A Feasibility Study regarding a system of compensation for the exchange of works via the Internet, a study conducted under the supervision of Professor André Lucas